Civic Freedom Monitor: Tunisia

Update: The Ministry of Civil Society and Human Rights confirmed that it is preparing a draft law that regulates associations in Tunisia and repeals the law currently governing associations, Decree No. 88 of 2011. The Ministry has convened a committee of experts to draft the new law, and has said it will conduct a series of consultations with civil society before submitting the draft law to the parliament. Civil society is concerned that a new law will introduce restrictions against associations/CSOs.

Introduction

The 2011 Revolution was the beginning of a new era for civil society and civic freedom in Tunisia. Since the country’s independence in 1956 and particularly after Zine El Abidine Ben Ali’s assumption of the presidency in 1987, civil society had atrophied under authoritarian rule. The governing law on associations, Law 154 of 1959, made associations subject to approval by the Ministry of Interior; only those organizations which received authorization from the state and remained in the state’s favor were allowed to operate. Following decades of repression, civil society organizations (CSOs) were weak and few in number when street vendor Mohamed Bouazizi set himself on fire and revolutionary protests began in late 2010.

Nonetheless, the Revolution brought civic activism to the forefront, and CSOs emerged to play a crucial role in shaping both the transition period and post-revolution state. Pressure from civil society was instrumental in compelling authorities to adopt a Constitution with expansive human rights protections, and for the free and fair, democratic elections that followed. Indeed, four civil society organizations were internationally recognized for their work to preserving the democratic transition: The Tunisian National Dialogue Quartet went on to win the Nobel Peace Prize in 2015 for its role in arranging negotiations and forging compromises among opposing political forces.

A post-Revolution decree governing civil society organizations – Decree Number 88 of 2011– marked a clear break with the past, replacing Law 154 and standing out as one of the most enabling civil society laws in the Middle East and North Africa region. The Decree provides broad protections for the exercise of freedom of association and support for a free and independent civil society sector, including provisions for public funding and prohibitions on state interference in organizations’ operations.

Nonetheless, civil society organizations in Tunisia continue to face obstacles in their everyday operations and activities. The right to peacefully assemble or protest remains governed by an extremely restrictive law from 1969 that gives officials broad discretion to suppress public assemblies. Further, Tunisia has been under a continuous State of Emergency since November 25, 2015, which allows for further limitations on individuals’ and organizations’ civic freedoms. Among other things, the emergency law authorizes officials to impose curfews and ban public protests altogether without a court order.

In 2018, some of the most important associations in the country are requesting the government preserve Decree Number 88 of 2011 due to their concern that proposed amendments to it will reduce the level of freedom for CSOs. The representatives of the Ministry of Civil Society and Human Rights have confirmed on many occasions that the revision will not affect the right to association in Tunisia, however, and have said they will conduct a series of consultations for civil society before submitting the draft law to the parliament.

International and Regional Human Rights Agreements

International Covenant on Economic, Social, and Cultural Rights (ICESCR)

Yes

1969

Optional Protocol to ICESCR (OP-ICESCR)

No

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International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

Yes

1967

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Yes

1985

Optional Protocol to the Convention on the Elimination of Discrimination Against Women

No

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Convention on the Rights of the Child (CRC)

Yes

1992

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)

No

-

Convention on the Rights of Persons with Disabilities (CRPD)

Yes

2008

Regional Treaties

Arab Charter on Human Rights

No

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* Category includes ratification, accession, or succession to the treaty

Constitutional Framework

The 2014 Constitution of the Republic of Tunisia provides broad protection for individuals’ right to freedom of association and assembly. Article 35 states that “[t]he freedom to establish political parties, unions, and associations is guaranteed.” The only stipulation is that “[i]n their internal charters and activities, political parties, unions and associations must respect the provisions of the Constitution, the law, financial transparency and the rejection of violence.” The Constitution also states, in Article 37, that “[t]he right to assembly and peaceful demonstration is guaranteed.”

National Laws and Regulations Affecting Sector

Relevant national legislation includes the following:

Decree Number 88 of 2011 pertaining to the Regulation of Associations

Decree Number 5183 of 2013 pertaining to the Control of the Standards, Procedures, and Criteria for Public Funding of Associations

Law No. 69-4 of 1969 regulating Public Meetings Processions, Parades, Demonstrations, and Gatherings

Pending NGO Legislative / Regulatory Initiatives

1. Representatives of the Ministry of Civil Society and Human Rights have confirmed that they are preparing a draft law that regulates associations in Tunisia and replaces Decree 88 of 2011. However, several leading associations in the country are advocating for the preservation of Decree 88 out of concern that any proposed amendments to the current legal regime will introduce new restrictions. The Ministry has said that changes to the law will not affect the right to association in Tunisia and stated that they will conduct a series of consultations for associations and other civil society groups in 2018 before submitting the draft law to parliament.

2. The "Prosecution of Abuses against the Armed Forces" draft law remains under consideration by a parliamentary committee. It was introduced in April 2015 after militants killed dozens of policemen, subsequently blocked following criticism from civil society groups and international bodies, but revived in July 2017 following another policeman death in Sidi Bouzid. In a hearing session of parliament’s legislative committee on November 15, 2017, the Minister of Interior stated that the draft law needs further revision after consulting with security unions. The draft law would prohibit individuals from criticizing, questioning, or filming Tunisian security forces.

3. In April 2018, a draft Law on the National Register for Institutions was released. The draft is being discussed within parliamentary committees. According to the draft, the purpose of the national register is to ensure transparency of economic and financial dealings by collecting information, data, and documents from individuals and corporate entities that are active in the economic field, including CSOs, and making them available for the public.

The draft obligates all CSOs and CSO networks to register in the national register. The application to register should include data on CSO staff, decisions by CSOs to merge or dissolve, CSO assets, and notices or suspension decisions issued against CSOs or CSO networks. The Council of the National Register has the right to approve or deny registration.

The draft includes a number of penalties, including imprisonment for up to one year and a fine of 10,000 TND for the failure of CSOs to apply for registration in the national registry (10,000 TND = approx 4,000 USD). The penalty is increased to five years of imprisonment and a fine of 50,000 TND for the submission of false information (50,000 TND = approx 20,000 USD).
The draft is confusing because it treats CSOs and for-profit entities in the same manner. It is also not clear how this registry will connect to the existing National Registry of CSOs.

Please help keep us informed; if you are aware of pending initiatives, write to ICNL at ngomonitor@icnl.org.

Legal Analysis

Organizational Forms

Decree 88 provides for three organizational forms: associations, networks of associations, and foreign organizations. An association is defined as “an agreement between two or more persons by virtue of which they operate permanently to achieve objectives that do not include the realization of profits.”
Article 47 of the Decree also provides that the “regulations of this decree do not apply to associations that are regulated by special laws.” This exception has created uncertainty as to which associations have their own laws and are exempt from the regulation of Decree No. 88.

The Law of Associations in Tunisia - Decree No. 88 of 2011 – does not contain provisions on the organizational model and the state of public utility.

Public Benefit Status

Decree 88 does not provide for public benefit status, nor does it address tax or customs exemptions for associations. Furthermore, Article 39 of the Decree requires that associations use the same accounting practices as those required for companies, meaning that not-for-profit entities must abide by the same system and standards as for-profit entities. This is costly for associations both in terms of staff time and financial resources.

Barriers to Entry

Only two individuals are required to form an association in Tunisia. Founders must be at least sixteen years old, and Tunisian nationals or foreign residents of Tunisia. Founders may not hold management posts in political parties.

Members of an association must be Tunisian nationals or foreign residents; be at least thirteen years old; accept the association’s bylaws in writing; and pay the association’s subscription fee.
Associations in Tunisia are legally established by sending a registered letter of notification to the Secretary General of the government and a copy of the letter to the Official Gazette of Tunisia for publication. The letter must contain a declaration providing the title, purpose, objectives, and address of the association and any branches it may have. It must include copies of the national identification cards of the founders, as well as the Tunisian residency permits for any foreign founders. The letter must also include two original copies of the articles of association, signed by the founders, containing:

The official name of the association, in Arabic and any foreign language if appropriate;

The address of the association’s headquarters;

A statement of the association’s objectives and their method of implementation;

Membership and termination criteria and the rights and duties of each member;

A statement of the association’s organizational structure, method of election, and the powers of each administrative body of the association;

Identification of the body within the association which has the power to amend the internal bylaw and make decisions regarding dissolution, merger, or division;

Definition of the decision-making methodology and mechanisms of dispute resolution;

The amount of the monthly or annual membership fees, if any.

A notary public must certify that the letter contains the above contents before it is sent. Associations must pay a nominal fee for the notification, including approximately $50 in publication fees to the National Gazette. According to Article 12 of Decree 88, an association is considered legally constituted on the date the letter is sent, and acquires legal personality on the date that the notification is published in the Gazette. Until these steps are complete, an association may not open a bank account, enter into contracts or agreements, or undertake activities.

Barriers to Operational Activity

Tunisian law does not place significant restrictions on associations’ activities. Decree 88 provides that associations’ activities and funding must abide by the principles of rule of law, democracy, plurality, transparency, equality, and human rights. Associations may not engage in incitement for violence, hatred, fanaticism or discrimination, nor may they undertake commercial activities in order to profit their members or evade taxes.

The Decree specifically guarantees associations’ rights to engage in other activities, however: Article 5 provides for associations’ right to access information; evaluate state institutions and submit recommendations to improve their performance; organize meetings, demonstrations, conferences, workshops and engage in “all types of civil activities;” publish reports and other information materials; and conduct opinion polls. Further, the government is required to “make all necessary arrangements” to ensure that individuals are protected from violence, threats, or any coercive measures in their exercise of the right to freedom of association.
Under the law, associations have relatively limited reporting and other administrative requirements.

Under the law, associations have relatively limited reporting and other administrative requirements." Associations whose revenues exceed 100,000 Tunisian Dinars (approximately $45,000) must retain a state-approved auditor; the auditor’s annual report must be submitted to the government and published, along with the association’s financial statements, in one written media outlet and on the association’s website. An association that receives public funding must provide an annual report to the Accounts Department, describing its funding sources and expenditures. An association that receives funding from a foreign source must also inform the Secretary General via a registered letter of the funding amount, source, and purpose. The notification must also be published by a written media outlet and posted on the association’s website. The same notification procedure is required if the association makes any revision to its bylaws, within one month of the revision.

The Decree also provides that public authorities may not impede or hamper associations’ activities, directly or indirectly. The Decree specifically precludes the freezing of an association’s bank accounts except by a judicial decision. Despite the guarantees of state protection noted above, a number of organizations continue to report harassment from security authorities, including unannounced visits to organizations’ headquarters and interrogations of their staff.

In November 2016, some members of Tunisia’s legislature, the Assembly of the Representatives of the People, expressed a desire to amend the Decree, in particular with regard to enhancing oversight and control of associations that receive foreign funding. This occurred in the context of the government moving to prosecute, dissolve, and halt the activities of numerous associations on the basis of suspected links to terrorist organizations.. The Minister of Relations with Constitutional Bodies, Civil Society and Human Rights had announced at that time that the government had frozen the activities of 38 associations among 157 that were suspected of having provided direct or indirect support to terrorist entities.

Barriers to Speech / Advocacy

There are no barriers to speech or advocacy in Decree 88, including political advocacy. On the contrary, while Decree 88 prohibits associations from collecting or donating money to support political parties or candidates, it expressly protects the right of an association “to express its political opinions and positions vis-à-vis issues of public affairs.” As noted above, the Decree also provides in Article 5 for association’s right to evaluate state institutions and submit recommendations to improve their performance. These provisions provide broad protection for associations to freely engage in advocacy and reform work.

Barriers to International Contact

There are no major legal barriers to international contact in Decree 88 or other laws. However, the Decree includes additional requirements for foreign organizations seeking to register and operate in Tunisia: Under Decree 88, foreign organizations abide by the same notification process in order to register, however the government may reject the notification letter within thirty days of receiving it. Nothing in the law prohibits communication between associations in Tunisia and individuals and organizations outside Tunisia.

Barriers to Resources

Tunisian law generally does not constrain associations’ ability to secure resources from private individuals and organizations in Tunisia. Funding from foreign donors is subject to some conditions, however. Decree 88 provides that associations may not receive funding from a country that does not have diplomatic relations with Tunisia, or a country that “defends the interests and policies” of such countries. An association that does receive donations or grants from foreign sources must inform the Secretary General of the source, value, and purpose of the funds, via a registered letter, within one month of the decision to request or accept the funds. The association must publish the same information on its website and in a written media outlet within one month.

Article 36 of Decree 88 provides that the state will allocate funds from the public budget to assist and support associations according to their “efficiency, projects, and activities.” A separate decree, Number 5183 of 2013 pertaining to the Control of the Standards, Procedures, and Criteria for Public Funding of Associations, governs this system of public funding. Decree 5183 appears designed both to support associations in their work, and to create a mechanisms akin to a public procurement process. Nonetheless, in implementation Decree 5183 has proven problematic, and sometimes at odds with its expressed purpose in assisting and supporting associations in Tunisia. A number of CSOs have called for the amendment of the Decree because of these problematic aspects.

Barriers to Assembly

The 2014 Constitution of Tunisia provides in Article 37, that “[t]he right to assembly and peaceful demonstration is guaranteed.” However, Law Number 69-4 of 1969, which remains in effect, strictly regulates public meetings, processions, parades, demonstrations and gatherings. Tunisia’s State of Emergency law, which was imposed on November 25, 2015 and continually renewed thereafter, allows for additional limitations on public assemblies, such as allowing authorities to impose curfews and ban public protests altogether without a court order.

Vague Provisions. Law Number 69-4 contains a number of vague provisions concerning which assemblies are permissible. For instance, the Law provides that authorities may prevent any protest that is expected to disturb the peace or "public order." It is unclear how authorities would be limited in determining what they “expect to disturb the peace” or what defines “public order.” If authorities decide to prevent an assembly, the assembly organizers may challenge the decision, and the Law requires that the Interior Ministry “look into the issue.” The provisions regarding the Ministry’s required response is very vague, and does not indicate whether the assembly organizers actually have a right of appeal or what such an appeal process might be. No provisions indicate that a court or other neutral arbiter is involved in deciding on the organizers’ challenge. The vague terms used in these provisions are subject to various interpretations, such that they grant authorities broad discretion to deny and unduly restrict citizens' right to peaceful assembly.

Law 69-4 also places responsibility on assembly organizers to stop any action that is against the law, or any speech that might harm public security or morals, or incite people to commit crimes. This contravenes the rights of individuals to freedom of peaceful assembly under international law. Individuals do not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others if the individual in question remains peaceful in his or her own intentions or behavior

Advance Notification. Law 69-4 requires prior notification for any public meeting. The notice should be made by at least two people with Tunisian citizenship who live in the area where the meeting will take place. The notifying parties must give their full identification, and must provide the place, day, and time that the meeting will take place as well as its purpose. Notification must be served to the responsible authority at least three days before the meeting takes place, but no more than fifteen.

Spontaneous Assemblies and Counter-Demonstrations. Law 69-4 does not allow unplanned protests that authorities have not been notified of.

Time, Place, and Manner Restrictions. Law 69-4 provides that no assemblies may take place on public roads. It also bans assemblies after midnight, unless the take place near stores or businesses that are open, in which case they may continue until the time that the stores close. While the Law does not ban specific types of assemblies, its grant of power to authorities to stop any assemblies that are “expected to disturb the peace or public order” means that authorities have broad discretion to suppress almost any kind of assembly.

Police Enforcement. In the years since the Revolution, most peaceful assemblies have proceeded and have not been banned. Nonetheless, there have been several recent incidents where security officials have forcefully dispersed peaceful demonstrators. For instance, in September 2015, security forces violently dispersed peaceful groups of demonstrators in Tunis and Kairouan, both groups protesting against a proposed economic reconciliation bill. A number of participants in both protests were injured.

Criminal Penalties. Law 69- provides that any individual who holds a public meeting or assembly without notifying the government beforehand may face three months in prison. If authorities reject an individual’s notification of a planned assembly, but the individual holds it regardless, any individuals who participate may be subject to jail sentences of up to two years.

News and Additional Resources

While we aim to maintain information that is as current as possible, we realize that situations can rapidly change. If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at ngomonitor@icnl.org.

Events

The Ministry of Civil Society and Human Rights has confirmed it will conduct a series of consultations for civil society and associations in 2018 before submitting the draft law on Decree No. 88 of 2011 to the parliament.

Municipal elections will be held in Tunisia (April 2018) (Arabic)
On May 6, 2018, municipal elections will be held in Tunisia. A significant participation of civil society is expected. In addition, for the first time, the security officers will participate in the elections in Tunisia.

Tunisia Passes Controversial Law, Undermining Democratic Transition (October 2017)
Tunisia’s parliament passed a controversial law that effectively grants amnesty to public officials involved in corruption under the Bourguiba and Ben Ali dictatorships from 1955 through 2010. The law, which faced intense opposition by civil society, ensures impunity for the very kind of corruption that the Tunisian people sought to eliminate in the 2010-2011 revolution.

Draft Law Could Return Tunisia to a Police State (June 2017)
Since the fall of the government of President Zine el-Abidine Ben Ali in 2011, Tunisia's nascent democracy has made great strides. These include the adoption of a new constitution, greater media freedom, and free and democratic elections. A draft law before parliament threatens these achievements and risks returning Tunisia to the police state of the Ben Ali government. The "Prosecution of Abuses against the Armed Forces" draft law was submitted to Parliament in April 2015 after several attacks by militants that killed dozens of policemen. It was subsequently blocked following criticisms from civil society groups and international bodies, but was revived following the violent death of a policeman in Sidi Bouzid in July 2017. The parliamentary commission on general legislation has announced that it is planning to submit the bill to a plenary vote before July 25, 2017. If the measure is adopted and interpreted in a literal way, it will effectively turn members of the Tunisian security forces into "super citizens": no one will be allowed to criticize them, film them, question their arbitrary behavior, or call for justice for unjustified use of lethal force.

Tunisia cracks down on NGOs (June 2017)
On June 12, the Tunisian government issued a statement ordering all non-governmental organizations (NGOs) to declare all funds they receive from abroad and threatened to prosecute any party that failed to comply. The move, unprecedented since the fall of President Zine El Abidine Ben Ali in 2011, has sparked controversy in the local civil society sector. Human and civil rights activist Sami Ben Salameh believes that non-transparent NGO funding represents a major problem in Tunisia. Despite the importance of foreign funding in ensuring the continuity of vital NGO activities, questionable funding by foreign parties often leads to controversies related to national security and to the independence of NGOs. Independent political analyst Mondher Bedhiafi, however, noted that the Tunisian government will face several challenges in addressing the issue of foreign funding, including the difficulty of prosecuting suspicious activities by NGOs in court. "NGOs are likely to win any judicial proceedings aimed to dissolve them or suspend their activities for lack of appropriate evidence," he said.

Civil Society Groups Join Efforts to Halt Public Sexual Harassment (November 2016)
A coalition of civil society organizations have launched a new campaign to combat sexual harassment. The campaign, titled “One Day … One Struggle,” aims to raise public awareness about women’s rights and the reality of sexual harassment through social media posts, outreach campaigns, and public dialogue sessions.

Revolution a Fading Memory, Economic Frustrations Grow in Tunisia (October 2016)
Tunisia was the sole political success story of the "Arab Spring" protest movement that swept the Arab world in 2011: the one country where a long-serving authoritarian leader was toppled without triggering violence or civil war. But six years after the uprising, Tunisia's much-praised model of democratic transition is souring for many of the country’s people.

Human Rights Report Slams Government Use of House Arrests (October 2016)
An investigative report by Human Rights Watch condemned the Tunisian government’s extensive use of house arrests. The report concludes that such measures lack appropriate documentation, rely on insufficient evidence, and escape judicial oversight, ultimately amounting to a massive breach of individual liberties.

Tunisia: LGBT Group Suspended (January 2016)
Human Rights Watch writes that the Tunisian authorities’ decision to suspend the activities of the LGBT rights group Shams is a setback for individual freedoms and equal rights in Tunisia and a dangerous Precedent for Freedom of Association. Shams works on lesbian, gay, bisexual, and transgender rights.Back to TopThe foregoing information was collected by Mohamed Fadhel Hamdi, President of the Associations and Sustainable Development International Observatory, in Tunis, Tunisia.